Midiyan Pani And Others vs State Of Orissa
2023 Latest Caselaw 2560 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                CRLMC NO.701 OF 2023

             (From the order dated 2nd December, 2020 passed by learned
             Sub-Divisional Judicial Magistrate, Gunupur in G.R. Case
             No.313 of 2020)

                  Midiyan Pani and others
                                                             ...       Petitioners

                                               -versus-

                   State of Orissa                           ...       Opposite Party



               Advocates appeared in the case through hybrid mode:

                      For Petitioners: Mr.P.K.Mishra,
                                       Advocate

                                                         -versus-

                     For Respondent: Mr.M.R.Mishra,
                                     Addl. Standing Counsel

               ---------------------------------------------------------------------------
                      CORAM:

                                     JUSTICE SASHIKANTA MISHRA

                                                   JUDGMENT

29.03.2023.

Sashikanta Mishra,J. The Petitioners, numbering 146 persons have

filed this application under Section 482 of Cr.P.C. with

prayer to quash the order dated 2nd December, 2020

passed by learned S.D.J.M., Gunupur in G.R. Case

No.313/2020, arising out of Puttasingh P.S. Case

No.59/2020 whereby, cognizance was taken of the

offences under Sections 269/270/34 of I.P.C. and

process was issued to the Petitioners-accused persons.

2. The brief facts of the case are that on 13th July,

2020 one Edison Lima, who was Pastor of Baptist

Church, Puttasingh in the district of Rayagada expired.

A monthly prayer was arranged in Puttasingh Baptist

Church by the villagers of Puttasingh on 13th August,

2020 to offer prayer for the departed soul. While the

Petitioners had congregated in the Church, the local

Police personnel entered into the Church premises and

accosted the Petitioners as to why they had

congregated in such large numbers violating the

guidelines of the Government issued to tackle

Corona-19 pandemic, which was then prevailing. It is

further claimed that the Petitioners were not wearing

masks and had not maintained social distancing. Since

such congregation was contrary to the Government

guidelines, the S.I. of Police of Puttasingh P.S.

submitted a written reporting leading to registration of

Puttasingh P.S. Case No.59 dated 13th August, 2020

under Sections 269/270/34 of I.P.C. In course of

investigation, notice under Section 41-A of Cr.P.C. was

issued to the Petitioners. Charge sheet was submitted

in the case upon completion of investigation under the

aforementioned sections. The Court below, by the

impugned order taking into consideration the

allegations and the statement of witnesses recorded

under Section 161 of Cr.P.C., took cognizance of the

offences.

3. Mr. P.K.Mishra, learned counsel appearing for the

Petitioners, submits that there is no material, prima

facie, to show that the guidelines of the Government

had been violated. Even otherwise, there is no evidence

to show that because of such congregation there was

spread of Corona virus. Therefore, initiation of the

criminal proceeding against large number of innocent

villagers amounts to an abuse of process of the Court.

4. Be it noted that by order dated 1st March, 2023 this

Court specifically wanted to know as to if there is any

evidence of any person belonging to the village having

been affected with Corona virus because of the

congregation referred to in the F.I.R. Despite sufficient

opportunity, the prosecution could not provide such

information.

5. Mr. M.R.Mishra, learned State counsel submits that

the statements of the witnesses recorded under Section

161 of Cr.P.C. would clearly show that the Petitioners

had congregated inside the Church in large numbers

at a time when corona pandemic was at its peak. This

was against the Government guidelines to maintain

social distancing as also other protocols like wearing

masks etc.

6. On going through the F.I.R. allegations and the

statement of the witnesses recorded under Section 161

of Cr.P.C. which are available on record, this Court

finds that there was undoubtedly a congregation of

several persons numbering more than 100 inside the

Church at the relevant time. It is also true that certain

guidelines had been issued at the relevant time by the

Government to control the spread of Corona virus. It

has been alleged that the Petitioners were not wearing

masks and had not maintained social distancing. It

has not been indicated as to how big the Church was

and what was the distance maintained between the

Petitioners. That apart, there is absolutely no evidence

to show that because of such congregation any person

was affected by Corona virus immediately or shortly

thereafter. It is to be noted that the sole purpose of

issuing the guidelines by the Government was to stop

the spread of Corona virus. As already stated, there is

no evidence even, prima facie, to show that any such

infection had happened because of the congregation in

question. Moreover, it is well settled that entanglement

of a person in a criminal case is a serious matter and

unless a definite criminal intention is forthcoming from

the records, it would not be proper to implicate a

person in a criminal case. Reference in this regard may

be had to the decision of the Apex Court in the case of

Pepsi Foods Ltd. and another vs. Special Judicial

Magistrate and others; 1998 5 SCC 749. It is

reiterated that a criminal case cannot be initiated as a

matter of course. Similarly, the Magistrate is not to act

as a mere Post Office to endorse the findings of the

investigating agency mechanically. Unless, the

Magistrate is satisfied that there is at least prima facie

evidence of the alleged offences having been

committed, it is not proper on his part to take

cognizance of the same. The least the Magistrate could

have done in the present case was to ask the

investigating agency to show as to if any person was

affected by Corona virus because of such congregation

before taking cognizance.

7. Mr. P.K.Mishra, has relied upon a decision of the

Madras High Court, rendered by a Hon'ble Single

Judge of Madurai Bench in the case of A. Muniadhas

vs. The State (Crl. O.P.(MD) No.17957/2021),

wherein a criminal case was initiated against the

members of a political party for protesting against non-

construction of Government Hospital at the allotted

site during a time when the pandemic was at its peak.

The Hon'ble Single Judge held that though the

informant cannot be blamed for registering the F.I.R.

yet the question is whether the prosecution could be

allowed to continue. The Single Judge further found

that the Petitioner had raised a legitimate public issue

and as a result no adverse consequence had ensued

and further the accused had not indulged in any act of

violence. This Court finds the reasoning of the Hon'ble

Single Judge of the Madras High Court quite applicable

to the facts of the present case as has been narrated

hereinbefore. Thus, this Court finds lack of evidence of

any criminal intention on the part of the Petitioners,

rather, the congregation was for a pious reason to pray

for a departed soul. Obviously, no criminality can be

attributed in such a case.

8. Therefore, in the considered view of this Court,

continuance of criminal proceedings against the

Petitioners would certainly amount to an abuse of the

process of the Court which therefore, warrants

interference by this Court.

9. In the result, the CRLMC is allowed. The

proceedings in G.R. Case No.313/2020 pending in the

Court of S.D.J.M., Gunupur are hereby quashed.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera